East High Gay/Straight Alliance v. Board of Educationand East High School PRISM Club v. Cynthia L. Seidel Students’ Rights to Free Speech and Association On October 6, 2000, the Salt Lake City School Board reversed the most extreme steps taken anywhere in the country against gay-supportive student clubs when it decided to change its policy and allow the clubs to meet at school. This decision ended nearly five years of controversy as well as two ACLU of Utah lawsuits brought on behalf of students who had sought to form gay-supportive student clubs at East High School, and it finally gave students access, on a non-discriminatory basis, to important non-curricular clubs that had been banned since 1996. It is due to the incredible courage of the student plaintiffs and other members of the East High Gay/Straight Alliance and PRISM Club, that the Salt Lake City School District is now a forum in which students can express gay-positive viewpoints and help create a safer school environment for lesbian and gay youth.
Background:East High Gay/Straight Alliance v. Board of Education The conflict began in 1995 when a group of students at East High School attempted to form a school club called the Gay/Straight Alliance (GSA). Its purpose, like that of hundreds of other similar clubs that have long been meeting in schools across the country, was to provide a safe and welcoming forum in which students could discuss important issues facing lesbian and gay youth. The East High GSA was no different than other high school student-initiated groups, all of which are protected by the 1984 Equal Access Act (EAA), mandating that any school that receives federal funding and has some non-curricular clubs, must give all non-curricular clubs equal access to the school’s resources.
Unfortunately, the Salt Lake City School District did not want to allow the GSA to meet. In order to block student speech it considered offensive and, at the same time, maintain compliance with the EAA, in February 1996, Salt Lake City became the first school district in the country to take the drastic step of banning all student clubs not related to the curriculum. In response, in March 1998, the ACLU of Utah, along with cooperating attorneys Laura Milliken Gray and Marlin Criddle, the ACLU of Northern California, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights, filed alawsuit on behalf of GSA members Keysha Barnes and Ivy Fox, arguing that the district’s actions violated the EAA since some non-curricular student groups were still allowed to meet. Our complaint also charged that the district’s policy regarding school clubs was evidence of a broader, unwritten, but very real policy prohibiting the expression of gay-positive viewpoints in any school setting, and it therefore violated the students’ First Amendment rights as well.
In October 1999, U.S. District Judge Bruce Jenkins agreed with us that the district violated the EAA during the 1997-98 school year when it did not allow the GSA to meet on the same terms and conditions as another East High non-curricular club (click here to view Judge Jenkins’s October opinion). In a November 1999 pre-trial hearing, the district stated in no uncertain terms that students have a First Amendment right to express gay-positive views in approved school groups. For the first time, the district referred to an administrative rule issued in May 1999 by the State Office of Education prohibiting discrimination against students and teachers on the basis of sexual orientation. This policy is an extremely significant consequence of our lawsuit, and the new state policy is a help to administrators, teachers, and students who wish to create a forum for gay-positive viewpoints that will counter the overwhelmingly negative atmosphere that lesbian and gay youth often face (click here to view Judge Jenkins’s November Judgment and Order of Dismissal).
In December 1999, we appealed the court’s decision regarding the EAA, arguing that the test Judge Jenkins relied upon to determine whether a student club related to the curriculum was so broad that practically any club the school board deemed acceptable could be defined as curricular. Our appeal to the 10th Circuit Court was supported by an amicus curiae brief from the American Counseling Association, the National Association of School Psychologists, the National Association of Social Workers, and the School Social Work Association of America. These organizations emphasized the importance of GSAs in public schools as a way to meet the very real needs of lesbian and gay students. The Asian American Legal Defense and Education Fund, the Hispanic Bar Association of the District of Colombia, the National Asian Pacific American Legal Consortium, and the National Organization for Women Legal Defense and Education Fund also submitted an amicus brief in which they stressed that non-curricular clubs benefit all students, and that policies such as that adopted by the Salt Lake City School District are particularly damaging to minority students. Now that non-curricular clubs are once again allowed in the Salt Lake City School District, we have withdrawn our appeal.
Background:East High School PRISM Club v. Cynthia L. Seidel Despite the fact that the Salt Lake City School District acknowledged in 1999 that students have the First Amendment right to express gay-positive viewpoints in approved student clubs, on March 1, 2000, Assistant Superintendent Cynthia Seidel, the school official responsible for approving student clubs, rejected the application of a group that wanted to provide students with the opportunity to do just that. The PRISM Club, which stands for People Respecting Important Social Movements, sought to extend and enhance the study of curricular subjects such as American Government and Law, U.S. History, and Sociology, by “talk[ing] about democracy, civil rights, equality, discrimination and diversity” through the perspectives of lesbians and gay men.
In the PRISM Club’s application, the students outlined an organization that fit the district’s definition of curriculum-related student groups in that its subject matter was taught in the school curriculum and its activities provided an “extension and reinforcement, application, and practice of curricular content.” After reviewing the clubs that Seidel had approved, it was clear that in rejecting the PRISM Club’s application, she had misapplied district standards for giving students access to the resources available to curricular clubs. And, through her inconsistent application of these standards, she effectively silenced gay-positive viewpoints in the forum available to student groups, and therefore violated the district’s policy regarding the expression of these views.
In April 2000, the ACLU of Utah, along with cooperating attorney Richard Van Wagoner, the National Center for Lesbian Rights, and Lambda Legal Defense and Education Fund, filed a complaint on behalf of the PRISM Club, the East High Rainbow Club (a similar club whose application had been rejected in 1999), and individual students Jessica Cohen and Margaret Hinckley. The complaint argued that the rejection of the clubs’ applications violated the students’ First Amendment rights to free speech and association as well as district policy. We also filed a preliminary injunction asking that the club be allowed to meet while this issue remained before the court. In an April 26 order, U.S. District Judge Tena Campbell granted the preliminary injunction and found that Seidel did not adhere to the district’s policies in determining that the PRISM club was not sufficiently “curriculum-related.” Thankfully, litigation is no longer necessary now that the Salt Lake City School District has granted club-status to both the GSA and the PRISM Club.
Gay-Straight Alliance Clubs Flourish in Southern Utah Schools, with ACLU Help
After the ACLU of Utah intervened on the students’ behalf, four Washington County high schools abandoned their unconstitutional school policies for student club formation and, for the first time ever, allowed students to form Gay-Straight Alliances (GSAs) on campus. For years, the schools restricted student club formation by requiring, in essence, popular or majority approval of club applications. For example, several of the schools required onerous signature-collection efforts before an application could even be submitted, and then majority, or even unanimous, approval by the student council. All the schools required approval by the principal and the faculty of every student club application, with no objective criteria in place to guide faculty or administrators in making their decision. The only supposed criteria in place to guide their decisions were completely subjective, such that all clubs be for “moral” purposes or promote only “wholesome activities.” Fortunately, however, the School District, unlike its high schools, already had in place a content-neutral policy for the formation of student clubs. The ACLU worked cooperatively with district administrators to make sure that the unconstitutional school-specific policies were abandoned and that only the district guidelines were utilized when analyzing club applications. Once applications were considered under the district’s content-neutral policy, all four GSA applications that were submitted were approved. “The issue here is not just discrimination against the LGBT community, but also a violation of these students’ basic First Amendment rights,” said ACLU of Utah Legal Director Darcy Goddard. The specific body of constitutional law addressing the right for students to form GSAs developed in response to the exclusion of religious groups from college and high school campuses. “We would be in Washington County, having this exact same discussion, if the high schools were unconstitutionally excluding from campus the Young Republicans’ Club,” said Goddard. After reading about the ACLU’s recent work in Washington County, students from Tooele and Davis Counties contacted the ACLU of Utah for help combating similar policies in their school districts. In Tooele and Davis Counties, not only are the school-specific policies unconstitutional, but so too are the district-wide policies for club formation, in the ACLU of Utah’s opinion. Those districts’ policies include the exact type of subjective and majoritarian criteria that were formerly utilized in Washington County. Although the ACLU of Utah hopes to work cooperatively with district administrators in Tooele and Davis Counties, it is prepared to litigate the issues if necessary. Goddard states, “It would be unfortunate if we have to litigate these basic First Amendment principles against Tooele and Davis Counties, but it may well come to that. That said, I thought the same the thing about Washington County, and I was pleasantly surprised by the district’s willingness to work with us to protect their students’ rights.”
Letter Regarding the Logan High School Gay/Straight Alliance
By Facsimile and U.S. Mail
June 20, 2003
Dr. Charles Nelson
Principal, Logan High School
162 West 100 South
Logan, Utah 84321
Re. Student Gay/Straight Alliance Organization at Logan High School
Dear Principal Nelson,
Students in your school are interested in forming a student organization, often called a gay/straight alliance, to focus on combating anti-gay harassment and discrimination and on educating the school community about these issues. Federal law requires that you treat such organizations the same as any other non-curricular club at your schools. However, allowing the club to meet is not just a legal duty; it makes sense from an educational and a safety perspective as well.
According to the federal Equal Access Act, 20 U.S.C. § 4071(a), if a public high school allows any student group whose purpose is not directly related to the school’s curriculum to meet on school grounds during lunch or before or after school, it cannot deny other student groups the same access to the school because of the content of their proposed discussions. Schools may not pick and choose among clubs based on what they think students should or should not discuss. As a federal judge concluded in one Equal Access Act case:
The Board Members may be uncomfortable about students discussing sexual orientation and how all students need to accept each other, whether gay or straight . . . . [But] Defendants cannot censor the students’ speech to avoid discussions on campus that cause them discomfort or represent an unpopular viewpoint. In order to comply with the Equal Access Act . . . the members of the Gay-Straight Alliance must be permitted access to the school campus in the same way that the District provides access to all clubs, including the Christian Club and the Red Cross/Key Club.
Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1148 (C.D. Cal. 2000).
The judge went on to emphasize that the gay/straight alliance provides an important forum for students who are concerned about sexual orientation. Recognizing the impact of discrimination on gay youth, the judge wrote: "This injunction is not just about student pursuit of ideas and tolerance for diverse viewpoints. As any concerned parent would understand, this case may involve the protection of life itself." (Id. at 1150).
In ruling as he did, the judge recognized that anti-gay harassment and violence are widespread among teenagers, especially in schools. Some of the most common epithets that teens use today to disparage each other are "faggot," "dyke," and "queer." A disproportionate amount of physical violence against gay men, lesbians, bisexuals, and trans-gendered people of all ages is perpetrated by teenage boys. Gay/straight alliances help to combat verbal and physical harassment. They create a space where students can come together to share their experiences, to discuss anti-gay attitudes they may experience in school, or to debate different perspectives on gay-related issues. Students’ talking openly and honestly with each other is a uniquely effective way of making young people aware of the harms caused by discrimination and violence.
School officials should not silence these student-initiated debates and discussions, as long as they do not involve targeted harassment of an individual student or group of students. Silencing ideas in a non-curricular setting because some people don’t like them is not only incompatible with the educational values of open inquiry and wide-ranging debate that are central to our free political system -- it is against the law.
The Equal Access Act was signed into law in 1984 after being heavily promoted by religious groups who wanted to ensure that students could form Christian clubs in public schools. The authors of the law understood that if this right were extended to students who wanted to start religious clubs, it must be extended to all students.
The following lists the most common ways schools try to block GSA’s - and why you shouldn’t try them.
1. Refusing to approve a GSA on the basis of morality:
The Equal Access Act specifically provides that a school cannot deny equal access to student activities because of the “religious, political, philosophical, or other content of the speech at such meetings.” Since any moral objections the school may have to a Gay/Straight Alliance are based on the religious, political, or philosophical views of its members, such an objection is not recognized by the Act. Simply put, the school cannot ban a GSA based on issues of morality if the GSA does not interfere with the orderly conduct of educational activities in the school.
2. Refusing to approve GSA because the school doesn’t want to be viewed as “endorsing homosexuality”:
Simply allowing a GSA to meet at a school does not indicate that the school approves or endorses the subject matter of the meetings. Observing, “the proposition that schools do not endorse everything they fail to censor is not complicated,” the Supreme Court has held that secondary school students are mature enough to understand that a school does not endorse or support speech that it merely permits on a non-discriminatory basis. Mergens, 496 U.S. at 250. Congress recognized the same point, stating: “Students below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher led religious speech on one hand and student-initiated, student-led religious speech on the other.” Mergens, 496 U.S. at 250-51 (quoting S.Rep. No. 98-357, p. 8 (1984)). In short, this excuse is no answer to a lawsuit that students can bring under the Equal Access Act.
3. Refusing to approve a GSA because the discussion of sex is not appropriate for high school students:
In Colín v. Orange Unified School District, one of the many federal court cases in which the Equal Access Act rights of GSA’s have been upheld, the court recognized that the focus of most GSA’s is not sex, but issues related to sexual orientation and how to combat unfair treatment and prejudice. The court also noted that assuming a GSA will discuss sex and other clubs will not unfairly singles out the GSA based on a stereotype. Finally, as indicated by the fact that even religious groups in school sometimes discuss sex-related topics and sex-education is taught in classes, there is no reason to believe that high school students can’t discuss sex-related topics. An administrator’s discomfort is not sufficient reason to ban a GSA if the GSA does not create a substantial disruption.
4. Refusing to approve a GSA because you think the Equal Access Act doesn’t apply to the GSA at your school:
As noted above, the protections of the Equal Access Act are triggered if the school allows just one non-curricular student activity on campus. While the Act itself does not define the differences between curricular and non-curricular clubs, a Supreme Court case does. In Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990), the court held that a non-curricular student group is any group that doesn’t “directly relate” to courses offered by the school. Let’s say your school teaches swimming. A swim team or club would then be considered curricular; a scuba diving club would be considered non-curricular, even though it involves swimming. Groups like a chess club, a stamp-collecting club, a community service club, or a GSA are usually considered non-curricular, because what they do is not taught in any class.
The line between curricular student activities and non-curricular activities can be blurry, and schools that get it wrong can pay a high price. For example, a school district in Kentucky recently thought that the Equal Access Act did not apply to it because, in its view, the school had no non-curricular clubs on campus. A federal judge held otherwise, noting that the school’s community service club, drama club, and class officer organizations continued to meet and were not “directly related” to the curriculum.
Even if a school successfully eliminates all non-curricular clubs, it may still have to allow a GSA to meet if that group is curricular. In Utah, a school district eliminated all non-curricular clubs in an attempt to prevent a GSA from meeting. The GSA students simply formed a different club, whose purpose was to discuss subjects taught in the school’s curriculum such as American government and law, U.S. history, and sociology, but from a lesbian and gay rights perspective. When the school rejected the students’ application, the students sued. The court held that the school was not applying its policy evenly because it was allowing a very broad interpretation of “curricular” for some groups but not others, and ordered the school to recognize the club.
In short, trying to prevent a GSA from meeting by eliminating all non-curricular clubs, or by limiting the kind of curricular clubs that can meet, is asking for a lawsuit. It also imposes a significant and unjustifiable cost on all students, depriving them of numerous after-school activities simply in order to silence students concerned about harassment and discrimination. That’s just not a proper role for a school.
5. Refusing to approve a GSA because a GSA will cause disruption:
When there is disruption surrounding a GSA, school officials need to ask themselves, “Who’s really being disruptive here?” If students, parents, or community members get in an uproar because they don’t like a GSA, they are the ones causing the disruption - not the GSA itself. A court in Kentucky recently ruled that even extensive disruption in the community and in school (thousand-person rallies, a boycott by half the student body) isn’t enough to justify shutting down a GSA where the GSA members themselves are not causing the commotion. Boyd County High School Gay/Straight Alliance v. Board of Education, _ F. Supp. 2d _, 2003 WL 1919323 (E.D. Ky. 2003).
6. Refusing to approve a GSA, claiming that it is under the control of some outside group or organization:
Although most high school clubs that address LGBT issues are referred to as GSA’s, and although some national organizations like the Gay, Lesbian, Straight Education Network have attempted to compile informal contact directories of GSA’s across the U.S., GSA’s remain local and student-driven. There is no national organization or governing body for GSA’s.
A school must apply restrictions regarding involvement of non-school persons uniformly. For example, if other clubs have names from outside organizations (for example a Key Club) and have not been prohibited, then the school cannot deny the GSA approval based on its name. Colin, 83 F. Supp. 2d at 1146-47.
7. Imposing conditions on the GSA that don’t apply to other clubs:
Schools cannot subject GSA’s to any conditions that do not apply to all other non-curricular clubs. Requiring a faculty advisor for the GSA but not for other groups, or placing different requirements on a GSA’s posters, leaflets, and announcements than it places on other groups, are examples of differential treatment that’s unlawful. In addition, delaying acting on the GSA’s application for approval can itself be disparate treatment that violates the EAA.
8. Requiring a GSA to change its name:
Many clubs want to use the name Gay/Straight Alliance, although some come up with other names (one group wanted to call itself Helping Unite Gays and Straights, or “HUGs’). Whatever the name is, schools cannot require that any reference to sexual orientation be removed, since doing so changes the focus and goals of the club. The court in Colin specifically ruled that a school could not tell a GSA to remove the term “gay” from its name. 83 F. Supp. 2d at 1147-48.
We hope this letter has given you a firm understanding of why schools should allow GSA’s to form as well as how you can remain in compliance with the Equal Access Act. By acknowledging students’ right to form GSA’s, you are not only obeying the law and avoiding potential legal liability, you are supporting diversity in your schools and taking a strong step towards addressing anti-gay harassment.
If you have any questions about this letter please feel free to contact me at (801) 521-9862 x 103. We are aware that you are taking steps to assure that the GSA will be allowed to meet at your school and commend your attempts to resolve this issue with your conflicting school policy. We send this letter to provide you with the basic information you need to avoid expensive and redundant litigation over this issue.
East High Gay/Straight Alliance v. Board of Education and
East High School PRISM Club v. Cynthia L. Seidel
Students’ Rights to Free Speech and Association
On October 6, 2000, the Salt Lake City School Board reversed the most extreme steps taken anywhere in the country against gay-supportive student clubs when it decided to change its policy and allow the clubs to meet at school. This decision ended nearly five years of controversy as well as two ACLU of Utah lawsuits brought on behalf of students who had sought to form gay-supportive student clubs at East High School, and it finally gave students access, on a non-discriminatory basis, to important non-curricular clubs that had been banned since 1996. It is due to the incredible courage of the student plaintiffs and other members of the East High Gay/Straight Alliance and PRISM Club, that the Salt Lake City School District is now a forum in which students can express gay-positive viewpoints and help create a safer school environment for lesbian and gay youth.
Background: East High Gay/Straight Alliance v. Board of Education
The conflict began in 1995 when a group of students at East High School attempted to form a school club called the Gay/Straight Alliance (GSA). Its purpose, like that of hundreds of other similar clubs that have long been meeting in schools across the country, was to provide a safe and welcoming forum in which students could discuss important issues facing lesbian and gay youth. The East High GSA was no different than other high school student-initiated groups, all of which are protected by the 1984 Equal Access Act (EAA), mandating that any school that receives federal funding and has some non-curricular clubs, must give all non-curricular clubs equal access to the school’s resources.
Unfortunately, the Salt Lake City School District did not want to allow the GSA to meet. In order to block student speech it considered offensive and, at the same time, maintain compliance with the EAA, in February 1996, Salt Lake City became the first school district in the country to take the drastic step of banning all student clubs not related to the curriculum. In response, in March 1998, the ACLU of Utah, along with cooperating attorneys Laura Milliken Gray and Marlin Criddle, the ACLU of Northern California, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights, filed alawsuit on behalf of GSA members Keysha Barnes and Ivy Fox, arguing that the district’s actions violated the EAA since some non-curricular student groups were still allowed to meet. Our complaint also charged that the district’s policy regarding school clubs was evidence of a broader, unwritten, but very real policy prohibiting the expression of gay-positive viewpoints in any school setting, and it therefore violated the students’ First Amendment rights as well.
In October 1999, U.S. District Judge Bruce Jenkins agreed with us that the district violated the EAA during the 1997-98 school year when it did not allow the GSA to meet on the same terms and conditions as another East High non-curricular club (click here to view Judge Jenkins’s October opinion). In a November 1999 pre-trial hearing, the district stated in no uncertain terms that students have a First Amendment right to express gay-positive views in approved school groups. For the first time, the district referred to an administrative rule issued in May 1999 by the State Office of Education prohibiting discrimination against students and teachers on the basis of sexual orientation. This policy is an extremely significant consequence of our lawsuit, and the new state policy is a help to administrators, teachers, and students who wish to create a forum for gay-positive viewpoints that will counter the overwhelmingly negative atmosphere that lesbian and gay youth often face (click here to view Judge Jenkins’s November Judgment and Order of Dismissal).
In December 1999, we appealed the court’s decision regarding the EAA, arguing that the test Judge Jenkins relied upon to determine whether a student club related to the curriculum was so broad that practically any club the school board deemed acceptable could be defined as curricular. Our appeal to the 10th Circuit Court was supported by an amicus curiae brief from the American Counseling Association, the National Association of School Psychologists, the National Association of Social Workers, and the School Social Work Association of America. These organizations emphasized the importance of GSAs in public schools as a way to meet the very real needs of lesbian and gay students. The Asian American Legal Defense and Education Fund, the Hispanic Bar Association of the District of Colombia, the National Asian Pacific American Legal Consortium, and the National Organization for Women Legal Defense and Education Fund also submitted an amicus brief in which they stressed that non-curricular clubs benefit all students, and that policies such as that adopted by the Salt Lake City School District are particularly damaging to minority students. Now that non-curricular clubs are once again allowed in the Salt Lake City School District, we have withdrawn our appeal.
Background: East High School PRISM Club v. Cynthia L. Seidel
Despite the fact that the Salt Lake City School District acknowledged in 1999 that students have the First Amendment right to express gay-positive viewpoints in approved student clubs, on March 1, 2000, Assistant Superintendent Cynthia Seidel, the school official responsible for approving student clubs, rejected the application of a group that wanted to provide students with the opportunity to do just that. The PRISM Club, which stands for People Respecting Important Social Movements, sought to extend and enhance the study of curricular subjects such as American Government and Law, U.S. History, and Sociology, by “talk[ing] about democracy, civil rights, equality, discrimination and diversity” through the perspectives of lesbians and gay men.
In the PRISM Club’s application, the students outlined an organization that fit the district’s definition of curriculum-related student groups in that its subject matter was taught in the school curriculum and its activities provided an “extension and reinforcement, application, and practice of curricular content.” After reviewing the clubs that Seidel had approved, it was clear that in rejecting the PRISM Club’s application, she had misapplied district standards for giving students access to the resources available to curricular clubs. And, through her inconsistent application of these standards, she effectively silenced gay-positive viewpoints in the forum available to student groups, and therefore violated the district’s policy regarding the expression of these views.
In April 2000, the ACLU of Utah, along with cooperating attorney Richard Van Wagoner, the National Center for Lesbian Rights, and Lambda Legal Defense and Education Fund, filed a complaint on behalf of the PRISM Club, the East High Rainbow Club (a similar club whose application had been rejected in 1999), and individual students Jessica Cohen and Margaret Hinckley. The complaint argued that the rejection of the clubs’ applications violated the students’ First Amendment rights to free speech and association as well as district policy. We also filed a preliminary injunction asking that the club be allowed to meet while this issue remained before the court. In an April 26 order, U.S. District Judge Tena Campbell granted the preliminary injunction and found that Seidel did not adhere to the district’s policies in determining that the PRISM club was not sufficiently “curriculum-related.” Thankfully, litigation is no longer necessary now that the Salt Lake City School District has granted club-status to both the GSA and the PRISM Club.
Taken from:http://www.acluutah.org/resolutions.htm#east
Gay-Straight Alliance Clubs Flourish in Southern Utah Schools, with ACLU Help
After the ACLU of Utah intervened on the students’ behalf, four Washington County high schools abandoned their unconstitutional school policies for student club formation and, for the first time ever, allowed students to form Gay-Straight Alliances (GSAs) on campus.
For years, the schools restricted student club formation by requiring, in essence, popular or majority approval of club applications. For example, several of the schools required onerous signature-collection efforts before an application could even be submitted, and then majority, or even unanimous, approval by the student council. All the schools required approval by the principal and the faculty of every student club application, with no objective criteria in place to guide faculty or administrators in making their decision. The only supposed criteria in place to guide their decisions were completely subjective, such that all clubs be for “moral” purposes or promote only “wholesome activities.”
Fortunately, however, the School District, unlike its high schools, already had in place a content-neutral policy for the formation of student clubs. The ACLU worked cooperatively with district administrators to make sure that the unconstitutional school-specific policies were abandoned and that only the district guidelines were utilized when analyzing club applications. Once applications were considered under the district’s content-neutral policy, all four GSA applications that were submitted were approved.
“The issue here is not just discrimination against the LGBT community, but also a violation of these students’ basic First Amendment rights,” said ACLU of Utah Legal Director Darcy Goddard. The specific body of constitutional law addressing the right for students to form GSAs developed in response to the exclusion of religious groups from college and high school campuses. “We would be in Washington County, having this exact same discussion, if the high schools were unconstitutionally excluding from campus the Young Republicans’ Club,” said Goddard.
After reading about the ACLU’s recent work in Washington County, students from Tooele and Davis Counties contacted the ACLU of Utah for help combating similar policies in their school districts. In Tooele and Davis Counties, not only are the school-specific policies unconstitutional, but so too are the district-wide policies for club formation, in the ACLU of Utah’s opinion. Those districts’ policies include the exact type of subjective and majoritarian criteria that were formerly utilized in Washington County.
Although the ACLU of Utah hopes to work cooperatively with district administrators in Tooele and Davis Counties, it is prepared to litigate the issues if necessary. Goddard states, “It would be unfortunate if we have to litigate these basic First Amendment principles against Tooele and Davis Counties, but it may well come to that. That said, I thought the same the thing about Washington County, and I was pleasantly surprised by the district’s willingness to work with us to protect their students’ rights.”
Taken from:http://www.acluutah.org/June2010Newsletter.html#GSA
Letter Regarding the Logan High School Gay/Straight Alliance
By Facsimile and U.S. Mail
June 20, 2003
Dr. Charles Nelson
Principal, Logan High School
162 West 100 South
Logan, Utah 84321
Re. Student Gay/Straight Alliance Organization at Logan High School
Dear Principal Nelson,
Students in your school are interested in forming a student organization, often called a gay/straight alliance, to focus on combating anti-gay harassment and discrimination and on educating the school community about these issues. Federal law requires that you treat such organizations the same as any other non-curricular club at your schools. However, allowing the club to meet is not just a legal duty; it makes sense from an educational and a safety perspective as well.
According to the federal Equal Access Act, 20 U.S.C. § 4071(a), if a public high school allows any student group whose purpose is not directly related to the school’s curriculum to meet on school grounds during lunch or before or after school, it cannot deny other student groups the same access to the school because of the content of their proposed discussions. Schools may not pick and choose among clubs based on what they think students should or should not discuss. As a federal judge concluded in one Equal Access Act case:
The Board Members may be uncomfortable about students discussing sexual orientation and how all students need to accept each other, whether gay or straight . . . . [But] Defendants cannot censor the students’ speech to avoid discussions on campus that cause them discomfort or represent an unpopular viewpoint. In order to comply with the Equal Access Act . . . the members of the Gay-Straight Alliance must be permitted access to the school campus in the same way that the District provides access to all clubs, including the Christian Club and the Red Cross/Key Club.
Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1148 (C.D. Cal. 2000).
The judge went on to emphasize that the gay/straight alliance provides an important forum for students who are concerned about sexual orientation. Recognizing the impact of discrimination on gay youth, the judge wrote: "This injunction is not just about student pursuit of ideas and tolerance for diverse viewpoints. As any concerned parent would understand, this case may involve the protection of life itself." (Id. at 1150).
In ruling as he did, the judge recognized that anti-gay harassment and violence are widespread among teenagers, especially in schools. Some of the most common epithets that teens use today to disparage each other are "faggot," "dyke," and "queer." A disproportionate amount of physical violence against gay men, lesbians, bisexuals, and trans-gendered people of all ages is perpetrated by teenage boys. Gay/straight alliances help to combat verbal and physical harassment. They create a space where students can come together to share their experiences, to discuss anti-gay attitudes they may experience in school, or to debate different perspectives on gay-related issues. Students’ talking openly and honestly with each other is a uniquely effective way of making young people aware of the harms caused by discrimination and violence.
School officials should not silence these student-initiated debates and discussions, as long as they do not involve targeted harassment of an individual student or group of students. Silencing ideas in a non-curricular setting because some people don’t like them is not only incompatible with the educational values of open inquiry and wide-ranging debate that are central to our free political system -- it is against the law.
The Equal Access Act was signed into law in 1984 after being heavily promoted by religious groups who wanted to ensure that students could form Christian clubs in public schools. The authors of the law understood that if this right were extended to students who wanted to start religious clubs, it must be extended to all students.
The following lists the most common ways schools try to block GSA’s - and why you shouldn’t try them.
1. Refusing to approve a GSA on the basis of morality:
The Equal Access Act specifically provides that a school cannot deny equal access to student activities because of the “religious, political, philosophical, or other content of the speech at such meetings.” Since any moral objections the school may have to a Gay/Straight Alliance are based on the religious, political, or philosophical views of its members, such an objection is not recognized by the Act. Simply put, the school cannot ban a GSA based on issues of morality if the GSA does not interfere with the orderly conduct of educational activities in the school.
2. Refusing to approve GSA because the school doesn’t want to be viewed as “endorsing homosexuality”:
Simply allowing a GSA to meet at a school does not indicate that the school approves or endorses the subject matter of the meetings. Observing, “the proposition that schools do not endorse everything they fail to censor is not complicated,” the Supreme Court has held that secondary school students are mature enough to understand that a school does not endorse or support speech that it merely permits on a non-discriminatory basis. Mergens, 496 U.S. at 250. Congress recognized the same point, stating: “Students below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher led religious speech on one hand and student-initiated, student-led religious speech on the other.” Mergens, 496 U.S. at 250-51 (quoting S.Rep. No. 98-357, p. 8 (1984)). In short, this excuse is no answer to a lawsuit that students can bring under the Equal Access Act.
3. Refusing to approve a GSA because the discussion of sex is not appropriate for high school students:
In Colín v. Orange Unified School District, one of the many federal court cases in which the Equal Access Act rights of GSA’s have been upheld, the court recognized that the focus of most GSA’s is not sex, but issues related to sexual orientation and how to combat unfair treatment and prejudice. The court also noted that assuming a GSA will discuss sex and other clubs will not unfairly singles out the GSA based on a stereotype. Finally, as indicated by the fact that even religious groups in school sometimes discuss sex-related topics and sex-education is taught in classes, there is no reason to believe that high school students can’t discuss sex-related topics. An administrator’s discomfort is not sufficient reason to ban a GSA if the GSA does not create a substantial disruption.
4. Refusing to approve a GSA because you think the Equal Access Act doesn’t apply to the GSA at your school:
As noted above, the protections of the Equal Access Act are triggered if the school allows just one non-curricular student activity on campus. While the Act itself does not define the differences between curricular and non-curricular clubs, a Supreme Court case does. In Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990), the court held that a non-curricular student group is any group that doesn’t “directly relate” to courses offered by the school. Let’s say your school teaches swimming. A swim team or club would then be considered curricular; a scuba diving club would be considered non-curricular, even though it involves swimming. Groups like a chess club, a stamp-collecting club, a community service club, or a GSA are usually considered non-curricular, because what they do is not taught in any class.
The line between curricular student activities and non-curricular activities can be blurry, and schools that get it wrong can pay a high price. For example, a school district in Kentucky recently thought that the Equal Access Act did not apply to it because, in its view, the school had no non-curricular clubs on campus. A federal judge held otherwise, noting that the school’s community service club, drama club, and class officer organizations continued to meet and were not “directly related” to the curriculum.
Even if a school successfully eliminates all non-curricular clubs, it may still have to allow a GSA to meet if that group is curricular. In Utah, a school district eliminated all non-curricular clubs in an attempt to prevent a GSA from meeting. The GSA students simply formed a different club, whose purpose was to discuss subjects taught in the school’s curriculum such as American government and law, U.S. history, and sociology, but from a lesbian and gay rights perspective. When the school rejected the students’ application, the students sued. The court held that the school was not applying its policy evenly because it was allowing a very broad interpretation of “curricular” for some groups but not others, and ordered the school to recognize the club.
In short, trying to prevent a GSA from meeting by eliminating all non-curricular clubs, or by limiting the kind of curricular clubs that can meet, is asking for a lawsuit. It also imposes a significant and unjustifiable cost on all students, depriving them of numerous after-school activities simply in order to silence students concerned about harassment and discrimination. That’s just not a proper role for a school.
5. Refusing to approve a GSA because a GSA will cause disruption:
When there is disruption surrounding a GSA, school officials need to ask themselves, “Who’s really being disruptive here?” If students, parents, or community members get in an uproar because they don’t like a GSA, they are the ones causing the disruption - not the GSA itself. A court in Kentucky recently ruled that even extensive disruption in the community and in school (thousand-person rallies, a boycott by half the student body) isn’t enough to justify shutting down a GSA where the GSA members themselves are not causing the commotion. Boyd County High School Gay/Straight Alliance v. Board of Education, _ F. Supp. 2d _, 2003 WL 1919323 (E.D. Ky. 2003).
6. Refusing to approve a GSA, claiming that it is under the control of some outside group or organization:
Although most high school clubs that address LGBT issues are referred to as GSA’s, and although some national organizations like the Gay, Lesbian, Straight Education Network have attempted to compile informal contact directories of GSA’s across the U.S., GSA’s remain local and student-driven. There is no national organization or governing body for GSA’s.
A school must apply restrictions regarding involvement of non-school persons uniformly. For example, if other clubs have names from outside organizations (for example a Key Club) and have not been prohibited, then the school cannot deny the GSA approval based on its name. Colin, 83 F. Supp. 2d at 1146-47.
7. Imposing conditions on the GSA that don’t apply to other clubs:
Schools cannot subject GSA’s to any conditions that do not apply to all other non-curricular clubs. Requiring a faculty advisor for the GSA but not for other groups, or placing different requirements on a GSA’s posters, leaflets, and announcements than it places on other groups, are examples of differential treatment that’s unlawful. In addition, delaying acting on the GSA’s application for approval can itself be disparate treatment that violates the EAA.
8. Requiring a GSA to change its name:
Many clubs want to use the name Gay/Straight Alliance, although some come up with other names (one group wanted to call itself Helping Unite Gays and Straights, or “HUGs’). Whatever the name is, schools cannot require that any reference to sexual orientation be removed, since doing so changes the focus and goals of the club. The court in Colin specifically ruled that a school could not tell a GSA to remove the term “gay” from its name. 83 F. Supp. 2d at 1147-48.
We hope this letter has given you a firm understanding of why schools should allow GSA’s to form as well as how you can remain in compliance with the Equal Access Act. By acknowledging students’ right to form GSA’s, you are not only obeying the law and avoiding potential legal liability, you are supporting diversity in your schools and taking a strong step towards addressing anti-gay harassment.
If you have any questions about this letter please feel free to contact me at (801) 521-9862 x 103. We are aware that you are taking steps to assure that the GSA will be allowed to meet at your school and commend your attempts to resolve this issue with your conflicting school policy. We send this letter to provide you with the basic information you need to avoid expensive and redundant litigation over this issue.
Sincerely,
Janelle P. Eurick
Staff Attorney
Taken from:http://www.acluutah.org/ltr062003.htm